What happens if I get divorced after I file a Joint I-751 Petition to Remove Conditions on Residence?

Posted on Feb 11, 2021

Over the years, I have received many inquiries from prospective clients who have separated or are considering separating from their spouse after they file a joint I-751 Petition to Remove Conditions on Residence. As I have explained in earlier blog posts, joint petitioners may still move forward with their I-751 as long as neither party has initiated legal separation or divorce proceedings provided that all other eligibility requirements are met. This blog is about options for joint petitioners who get divorced before a decision is made on their I-751.

The best example of how U.S. immigration law works in this situation was set forth in the case of Matter of Tee, a 1995 decision by the Board of Immigration Appeals. See Matter of Tee, Int. Dec. 3240 (BIA 1995). In Matter of Tee, the foreign national spouse (“Mrs. Tee”) filed a timely joint I-751 petition with her husband within the 90-day window immediately before her conditional permanent residence expired. However, sometime before the interview on the I-751 petition, the parties were divorced. After the interview, the adjudicating officer denied the petition and placed Mrs. Tee in removal proceedings before the Immigration Judge.

Readers of this blog know, from previous posts, that the Immigration Judge only has the legal authority and jurisdiction to review the denial of the I-751 (joint or waiver) that was filed with USCIS. Thus, once Mrs. Tee was in front of the Immigration Judge she submitted her joint I-751 petition for review. By this point in the case, Mrs. Tee was already married to another U.S. citizen and was expecting a child. After the conclusion of the evidence and taking testimony of the parties, the Immigration Judge found that Mrs. Tee had entered into her marriage to secure an immigration benefit, affirmed the denial of the I-751 petition and ordered her removed to her native country of Malaysia. Because she did not agree with the decision of the Immigration Judge, Mrs. Tee filed an appeal with the U.S. Board of Immigration Appeals, to ask the Board to review whether the Immigration Judge correctly denied her joint I-751 petition.

On appeal, the Board of Immigration Appeals found that because Mrs. Tee was divorced, she was ineligible under the law to have her joint I-751 approved. As such, the Immigration Judge’s conclusion that she entered into her marriage to secure an immigration benefit was improper because the joint petition should not have even been considered by the Judge in the first place. But because it appeared that Mrs. Tee and the Judge had proceeded under the mistaken assumption that the Court had the authority to review the denial of the joint I-751 petition (even though she was divorced), the Board remanded (sent back) the case to the Immigration Judge to allow Mrs. Tee to file an I-751 waiver petition based upon good faith marriage.

And so what is the lesson that joint I-751 petitioners can learn from Matter of Tee? In short, if you get divorced before a decision is made on your I-751, then your only hope of having your condition removed (rather than having your status terminated by USCIS) is to request a waiver of the joint petition requirement. You can do this either by requesting that USCIS convert your joint petition into a waiver petition (based on good faith marriage) or by filing a new I-751 petition based upon any of the waiver grounds (good faith marriage, abused spouse, or hardship).

If you have questions about how your divorce will affect your joint I-751 petition, call U.S. Immigration Lawyer Sean D. Hummel to schedule a consultation (954) 385-3111 / sean@hummelaw.com.

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